Minnesota Crimes | Criminal Charges » Dissemination of Private Sexual Images

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What is a revenge porn crime?

“Revenge porn” refers to posting sexual images online without consent, with intent to injure that person’s privacy, name, or security. And here, Minnesota Revenge Porn Attorney Thomas C. Gallagher explains the criminal law and defenses on Minnesota’s Nonconsensual Dissemination of Private Sexual Images crime

In recent years States around the U.S.A. have enacted various criminal statutes. But courts have struck down some of these new laws as unconstitutional. And Minnesota Revenge Porn Attorney, Thomas Gallagher has challenged the constitutionality of Minnesota Statute §617.261.

But each time a court strikes down one of these laws; another legislature somewhere drafts a newer version to limit it. So, these legislatures hope to satisfy the courts that the newest version does not go too far. They hope that the next generation law can withstand Constitutional scrutiny by the courts. But the cycle repeats. And over time, these developments result in a complicated revenge porn law.

Laws: Dissemination of Private Sexual Images

Minnesota Statute Section §617.261 is Minnesota’s main revenge porn law. But other Minnesota laws exist that prosecutors can also use. And Minnesota revenge porn attorneys can use these other laws to defend, as well.

Nonconsensual Dissemination of Private Sexual Images

In Minnesota, the main “revenge porn” statute is Minnesota Statutes §617.261 (2022), “NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES.” Subdivision 1 begins to define the crime:

“Subdivision 1.Crime. It is a crime to intentionally disseminate an image of another person who is depicted in a sexual act or whose intimate parts are exposed, in whole or in part, when:
(1) the person is identifiable:
(i) from the image itself, by the person depicted in the image or by another person; or
(ii) from personal information displayed in connection with the image;

(2) the actor knows or reasonably should know that the person depicted in the image does not consent to the dissemination; and

(3) the image was obtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy.”
Minn. Stat. §617.261

Intentional dissemination to third-party

The law requires that the defendant intentionally disseminated to third-parties. “Sexting:” Sending an image of one of the two parties, to the other party is not dissemination to a third-party.

Defense: If the recipient shows the image to others; that is not evidence of the sender intentionally disseminating to a third-party. And Minnesota Revenge Porn Attorney Thomas Gallagher has successfully defended cases on those facts, with this defense.

Identifiable as specific person

The image must be identifiable as a specific person. But if not identifiable as a specific person, there is no defamatory effect and no crime under this statute.

Even if there was dissemination to third-parties, if the subject or model consented to it, there is no crime. So, the prosecutor must come up with proof that the subject did not consent.

Knowing invasion of reasonable expectation of privacy

In addition, the law requires a knowing invasion of a reasonable expectation of privacy to get the image. And this requirement contains two significant parts.

First, the accused must have known about the model’s reasonable expectation of privacy. Second, the model must have actually had a reasonable expectation. So, a good Minnesota Revenge Porn Attorney dissects evidence of reasonable expectations.

Content-based restrictions on speech: Dissemination of Private Sexual Images

The image must be “of another person.” And the image must either depict a sexual act or expose “intimate parts” of another person. Subdivision 7 (e) defines “Intimate parts:”

“‘Intimate parts’ means the genitals, pubic area, or anus of an individual, or if the individual is female, a partially or fully exposed nipple.”

But sometimes a prosecutor’s claim that an area of the body is an “intimate part,” does not fit the definition. The hip area or buttocks may not be “intimate parts,” for example. And the statute’s limiting criminality based on gender seems to be blatant gender-discrimination and a violation of constitutional principles of equality.

Laws with content-based restrictions on speech discriminate against speech based on the substance. But, a content-neutral law applies to expression no matter what its substance. The Supreme Court may strike down laws that discriminate on the basis of expression. Minnesota Statute §617.261 is relatively new. Revenge Porn Attorney Thomas Gallagher views it is an unconstitutional, content-based restriction on speech.

Another problem with this statute is Subdivision 3, which boldly asserts:

“No defense. It is not a defense to a prosecution under this section that the person consented to the capture or possession of the image.”

But that directly contradicts another part of the law. Subdivision 3 contradicts the elements of the crime definition in Subdivision 1:

“(3) the image was obtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy.”

So, the prosecution must have evidence to prove that “the actor knew or reasonably should have known…” and that the “person depicted [actually] had a reasonable expectation of privacy.” That means, of course, that consent is a defense if “the person depicted consented to the capture or possession of the image.”

And we resolve conflicts in criminal laws in favor of the defendant, under statutory construction rules. So, an experienced Minnesota Revenge Porn Attorney must both know the law; and how to persuade the judge and jury, with the law.

Many cases defy the “revenge porn” narrative. So, for example, the law does not require a revenge motive. And prosecutors charge many different types of cases under these laws. Beyond the most specific law, Minnesota Statute 617.261, prosecutors can use other laws.

These include different criminal and civil statutes including Harassment, Stalking, Obscenity, Privacy and Coercion-Extortion. So, a person facing one of these charges needs a good Minnesota Revenge Porn Attorney who knows these laws as well.

What is one charge we haven’t seen in a Complaint claiming a revenge porn crime? Criminal Sexual Conduct. This highlights that fact that revenge porn cases so far have always involved either consensual acts, or no sex acts at all.

Most sex crimes listed in Minnesota’s Criminal Sexual Conduct Statutes require either penetration or touching. Most revenge porn cases don’t.

Harassment & Stalking

Minnesota Statutes §609.748 HARASSMENT; RESTRAINING ORDER is a civil remedy statute providing a procedure to ask a judge for a “Harassment Restraining Order.”

It specifically references “a single incident of nonconsensual dissemination of private sexual images under section 617.261.” But it is broader, inclusive of many other forms of harassment.

Minnesota Statutes §609.749 STALKING is a criminal statute. Courts often call it “Harassment-Stalking.” Prosecutors use this law in situations that fit the “revenge porn” prototype. And they can use it in other situations.

Obscenity

Minnesota Statutes §617.241 OBSCENE MATERIALS AND PERFORMANCES, is another criminal statute. Prosecutors can use this statute to charge a crime for knowingly exhibiting, publishing, distributing or attempting to distribute obscene material.

Privacy

Minnesota Statutes §609.746 INTERFERENCE WITH PRIVACY, is a criminal statute. Prosecutors can use it to charge peeping cases; as well as a person who “surreptitiously installs or uses any device for observing, photographing, recording” a “place where a reasonable person would have an expectation of privacy and … likely to expose their intimate parts.”

Coercion & Extortion

Minnesota Statutes §609.27 COERCION is also a criminal statute. Prosecutors can use it in a blackmail or extortion fact-pattern. It specifically refers to Minnesota Statutes §617.261 “NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES;” and is a lesser-included offense. And here you can see our page about this, Minnesota Coercion law.